R v P, NJ (No 2)

Case [2007] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v P, NJ (No 2)

[2007] SASC 135

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)

20 April 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS

Appeal against a ruling on issues antecedent to trial and consideration of questions of law reserved - appellant previously found not guilty of attempted murder and guilty of wounding with intent to cause grievous bodily harm - following verdicts, victim died as a result of the injuries suffered - appellant charged with murder - whether the charge of murder must be withdrawn due to a plea of autrefois convict - whether the charge of murder must be withdrawn due to a plea of autrefois acquit - whether a stay should be granted on the grounds that the charge of murder is an abuse of process - whether the parties are precluded from questioning the verdicts in the previous trial by the tender of any evidence which, if accepted, would overturn or tend to overturn those verdicts - whether the parties are precluded from questioning any finding of fact by the Judge in the previous trial, including by the tender of any which, if accepted, would overturn or tend to overturn that finding on the basis that it is inconsistent with the verdicts - whether the accused is constrained in the manner by which he may contest the prosecution case - whether evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm is admissible to prove any of the elements of murder, proof of which was required for the conviction of wounding with intent to do grievous bodily harm, and if so, can the fact of that conviction be proved by way of a certificate issued pursuant to s 42 of the Evidence Act 1929 - Held: appeal dismissed - plea of autrefois convict unsuccessful - plea of autrefois acquit unsuccessful - the charge of murder does not constitute an abuse of process - evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm is not admissible to prove the elements of murder - the elements of murder must be proved by the tender of relevant probative and admissible evidence.

Criminal Law Consolidation Act 1935 (SA) ss 11, 18, 21, 270A, 330, 350(1A); Supreme Court Criminal Rules rule 8; Evidence Act 1929 (SA) 26, 42; Criminal Law Consolidation (Abolition of Year and Day Rule) Amendment Act 1991 (SA); Correctional Services Act 1982 (SA) s 67; Victims of Crimes Act 2001 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 7A, referred to.
R v [P, NJ] [2003] SASC 308; R v [P, NJ] [2006]…

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R v P, NJ (No 2) [2007] SASC 135
Case
[2007] SASC 135
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CaseChat Overview and Summary

The appeal in this case was brought by an appellant who had previously been found not guilty of attempted murder and guilty of wounding with intent to cause grievous bodily harm. Following these verdicts, the victim died as a result of the injuries sustained. The appellant was subsequently charged with murder. The central issues in this case were whether the charge of murder should be withdrawn due to the appellant's previous acquittal on the charge of attempted murder and conviction on the charge of wounding with intent to cause grievous bodily harm, whether the charge of murder constitutes an abuse of process, and if the appellant is constrained in the manner by which he may contest the prosecution case. Additionally, the court considered whether evidence establishing the fact of the conviction for wounding with intent to cause grievous bodily harm could be used to prove the elements of murder.

The court dismissed the appeal and ruled that the plea of autrefois convict and autrefois acquit were both unsuccessful. The court held that the charge of murder does not constitute an abuse of process. Furthermore, the court found that evidence establishing the fact of the conviction for wounding with intent to cause grievous bodily harm is not admissible to prove the elements of murder. The elements of murder must be proved by the tender of relevant probative and admissible evidence.

The court's reasoning was grounded in the principles that judicial determinations should be based on concrete and established situations, and that courts should not provide answers to hypothetical questions or give advisory opinions. The court found that the trial judge's decision not to grant a stay was within her discretion and fully justified in the circumstances. The court also observed that the questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated, which further indicated that they did not arise at any trial. The court concluded that the questions reserved appeared to invite an opinion on a hypothetical question, which is not suitable for judicial resolution.

No orders were made by the court in this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In Bass v Permanent Trustee Co Ltd[28] the High Court had occasion to express concern about the problems associated with hypothetical questions. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[29][28] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334.[29] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]-[48] (footnotes omitted).The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”Similarly, Professor Borchard in his pioneering work, Declaratory Judgments stated: “A judgment of a court is an affirmation, by the authorized societal agent of the state ... of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called `judicial power,' is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights.” (Footnotes omitted.)Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that: “a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case. It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say: “If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”It is against the background of these authorities that the appropriateness of answering the questions should be considered.The facts identified by the trial Judge

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DUGGAN J GRAY J
These were appropriate considerations. Together they form a clear case to refuse a stay. The Judge did not act upon a wrong principle, did not permit extraneous or irrelevant matters to intrude, did not mistake the facts and did not fail to take into account a material consideration. The conclusion at which the Judge arrived was within her discretion. No error has been demonstrated. The conclusion of the Judge was fully justified in the circumstances.Conclusion The appeal should be dismissed.Consideration of Questions of Law Reserved In DPP v B[26] the High Court had occasion to consider the appropriateness of answering questions reserved. At the time, section 350(1A) of the Criminal Law Consolidation Act 1935 (SA) provided:Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court.The Court took the view that the questions reserved should not be answered as they did not arise at the trial. Section 350(1A) has been amended to make it plain that questions can be reserved at or before trial. The amendment to the section was in place at the time that the questions were reserved in the principal proceedings.[26] DPP v B (1998) 194 CLR 566. However, in DPP v B, the Court provided observations relevant to whether the Court should in the present case answer the questions reserved:[27]The questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated. That the questions were so general is, itself, a strong indication that they did not arise at any trial. Whether a particular power should be exercised in a particular way may well arise at a trial and although that might require consideration of whether power of the kind in question does exist, the question which arises at trial will, at least ordinarily, not be that broad and general question – “does the power exist?” -- it will usually be whether the alleged power can be exercised in the circumstances arising at the trial. The failure to connect the questions with the facts stated in the case might be seen as some drafting defect that should not be permitted to impede the resolution of the questions. But the generality of the questions that were referred is not simply a defect in drafting. It is a symptom of a more deep-seated problem.The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions. The questions reserved in this matter appear to invite such an opinion.Authorities footnoted by the High Court to support the above observations included a number from the civil jurisdiction.[27] DPP v B (1998) 194 CLR 566 at [11]-[12] (footnotes omitted).

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, GRAY J

The appeal should be dismissed.Consideration of Questions of Law Reserved In DPP v B[26] the High Court had occasion to consider the appropriateness of answering questions reserved. At the time, section 350(1A) of the Criminal Law Consolidation Act 1935 (SA) provided:Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court.The Court took the view that the questions reserved should not be answered as they did not arise at the trial. Section 350(1A) has been amended to make it plain that questions can be reserved at or before trial. The amendment to the section was in place at the time that the questions were reserved in the principal proceedings.[26] DPP v B (1998) 194 CLR 566. However, in DPP v B, the Court provided observations relevant to whether the Court should in the present case answer the questions reserved:[27]The questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated. That the questions were so general is, itself, a strong indication that they did not arise at any trial. Whether a particular power should be exercised in a particular way may well arise at a trial and although that might require consideration of whether power of the kind in question does exist, the question which arises at trial will, at least ordinarily, not be that broad and general question – “does the power exist?” -- it will usually be whether the alleged power can be exercised in the circumstances arising at the trial. The failure to connect the questions with the facts stated in the case might be seen as some drafting defect that should not be permitted to impede the resolution of the questions. But the generality of the questions that were referred is not simply a defect in drafting. It is a symptom of a more deep-seated problem.The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions. The questions reserved in this matter appear to invite such an opinion.Authorities footnoted by the High Court to support the above observations included a number from the civil jurisdiction.[27] DPP v B (1998) 194 CLR 566 at [11]-[12] (footnotes omitted). In Bass v Permanent Trustee Co Ltd[28] the High Court had occasion to express concern about the problems associated with hypothetical questions. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[29][28] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334.[29] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]-[48] (footnotes omitted).The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”Similarly, Professor Borchard in his pioneering work, Declaratory Judgments stated: “A judgment of a court is an affirmation, by the authorized societal agent of the state ... of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called `judicial power,' is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights.” (Footnotes omitted.)Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that: “a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case. It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say: “If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”It is against the background of these authorities that the appropriateness of answering the questions should be considered.The facts identified by the trial Judge